Thursday, July 21, 2011

That crazy software patent situation

Many people have asked me -- that is, I have been asked -- that is, Jmac asked me last weekend -- anyway, this iOS software patent situation. What do I think?

Catching up: back in May, a handful of iOS software developers (and at least one Android developer) received legal documents from a company called Lodsys. Lodsys declared that the use of an "upgrade to full version" button (the normal sort of thing you'd see in trial, demo, or lite-version apps) infringed patent 7222078, and the developers needed to either pay off Lodsys or get sued. (Macworld news story, May 13th) Two weeks later, Lodsys filed a lawsuit against seven developers. (Florian Mueller blog post, May 31st)

You can peruse the patent document. It starts "Methods and systems for gathering information from units of a commodity across a network", which tells you nothing, and it gets less useful from there. The upshot, according to Lodsys:

In the case of an Application doing an in-application upgrade (and only this scenario), Lodsys is seeking 0.575% of US revenue over for the period of the notice letter to the expiration of the patent, plus applicable past usage. (Lodsys web site, May 15th)

For added confusion, Apple licensed this patent (and thus paid Lodsys) long ago. It's a finesse: Apple claims that when an iOS app implements in-app purchase, it's using Apple software and services (the App Store) which are covered by Apple's license. Lodsys claims that each app developer needs to license the patent separately. (Open letter from Apple, as reprinted by Macworld, May 23rd)

Obviously, I have no way to judge the validity of the patent. It dates from the 1990s. Common sense says that software has been using this sort of in-app upgrade since at least those days; no license fees have ever been exchanged for it, except for the kind of big-block patent maneuvering that giant companies (Apple, Google, etc) engage in. Common sense has nothing to do with the patent system, and so we leave it to rot. I refer you to Florian Mueller's FAQ on Lodsys for informed (though not lawyerly) commentary.

What does this mean for my life as a nascent-we-hope iOS software developer?

In the short term, I just proceed with caution. I will avoid using in-app purchase and upgrade for my apps. (These were not a big part of my plan anyway, but I was considering them. Now I'm not.)

You might say -- and Lodsys is certainly hoping that I'll say -- "0.575%, what the hell, that's tiny. Just pay it."

So look. First of all, screw them. Second of all, you don't spill blood in the water. There are at least two other patent-exploitation attempts affecting small developers right now: MacroSolve and Kootol. (The latter is targetting the big boys as well as independents.) More must be waiting to pounce. There is no known upper bound to the number of bullshit patents that might be out there, hanging over every software practice I might have learned in the past twenty years. If this is a viable means of predation on developers, it won't stop at half a percent.

Therefore: screw them. But also: this is not a stable situation. It developed just this summer, and it will develop further by the time I ship my first game. So there's no point in me freaking out or changing my life plans.

(Besides, I'm basically an optimistic person. Or maybe I like living in a state of self-delusion. My current situation could be taken as evidence of either. So what the hell, why quit now?)

In the medium term, several things could happen:

Lodsys could stop suing more developers until their current set of lawsuits are resolved. Yeah, I'm not exactly counting on that one.

Apple could say "We are squelching this stupidity." That probably doesn't mean changing the entire patent system. But they could sue Lodsys. Or they could provide legal resources to help the developers now being sued. The whole point of suing small developers is to batten onto defenseless targets; if the targets are getting pro bono legal aid from a company with $75 billion, the point gets blunted.

Apple could say "Eh, developers can take it in the nuts." I don't take Steve Jobs for a saint. If Apple thinks they can survive with fewer developers in the world, they could let the world change. (The letter they've already sent is encouraging, but it really just says "Cut that out, please, wouldja?")

The problem with these options is that they're indistinguishable on current evidence. Apple doesn't telegraph its legal moves. They might be helping developers already, and I wouldn't know it until they make an announcement.

And in the long term? This is not just Apple and in-app purchase, after all. Kootol is going after Twitter developers; MacroSolve has something about electronic form entry.

I suppose independent software development could become a wasteland. We've seen some predictions in that direction, such as this post from Craig Hockenberry. (His company, the Iconfactory -- of Twitterrific fame -- got walloped by Lodsys and Kootol.)

At the opposite extreme, some of these patent-trolling companies could get their asses handed to them in court, and the whole mess could blow over.

I can also imagine software developers banding together into patent-defense collectives. You don't have to have more money than Apple, after all; you just have to have more money than the patent trolls. I would pay a percentage of my income to a legal defense fund, a "not one red cent" plan. Of course there ways that could go horribly wrong, but we're speculating here.

Or, I suppose, the patent system could be reformed to not support this kind of crap. I'm not counting on that either.

In case you care, my basic position on software patents hasn't changed since the GIF debacle of the late 1990s. I think software patents are not an inherently broken idea; they just need to be scaled to the speed of Internet innovation and software release cycles. Say, eighteen months. If you can't get ahead of your imitators in that span of time, you're screwed anyway.
Update, August 20:

Looks like Google has jumped in on this too. They've filed a legal request to re-examine Lodsys's patents. According to Groklaw, Google has a strong position:

These five items of prior art go to the fact that the critical elements of the '078 patent claims are not even novel! (-- Groklaw post, August 18th)

That is, Google has found five earlier patents that already have the important elements of Lodsys's patents. So it's not even "somebody else invented this first"; it's "somebody else invented this first and the patent office knew it".

However, Florian Mueller is not so encouraging:

I don't consider those reexamination requests -- unless they will be accompanied by more forceful and useful measures very soon -- a serious commitment to supporting Android app developers against trolls. If this is all that Google does, it's too little, too late, and calling it "half-hearted" would be an overstatement. (-- Florian Mueller blog post, August 13th)

He thinks the ongoing lawsuits are unlikely to be stayed on this basis, so Google's filing doesn't change anything for developers today.

It's worth noting that Google's position is at odds with Apple's, which is that the patent is valid but only Apple is using it -- app developers are just using Apple's service -- and Apple is licensed to do that. (Apple has filed to intervene on this basis.) Developers can use both defenses, of course.

Comments imported from Gameshelf

Julia (Jul 21, 2011 at 4:35 PM):

Huh, I wonder why they're going after Apple and not Microsoft. The XBLA model of "everything gets a demo and you unlock the full game instantly by paying" has to be at least as profitable. A brief scan of the patent (and a complete lack of legal training) seems to make me think this isn't necessarily limited to mobile devices.
Andrew Plotkin (Jul 21, 2011 at 5:22 PM):

They're clearly picking targets somehow, since there are literally thousands of iOS developers using in-app purchase. But I don't know what would be different about Microsoft.
Jason McIntosh (Jul 21, 2011 at 5:46 PM):

You know, I'd be willing to bet that the patent trolls in question simply haven't heard of XBLA; I can't imagine it's a major topic in anyone's business-and-technology news journal. The App Store, on the other hand...